laws and tribunals of another state. He acts for the state, and his act binds the state in its several departments. But even if it be within the power of a court having jurisdiction of a defendant to thwart the command of the executive, as the defendant claims was done in Hobbs v. State, 22 S. W. 1035, 40 Am. St. Rep. 782, by the Court of Criminal Appeals of Texas, yet the court itself has the power to subject its own administration to that of a foreign state. But wherever the power of removal may reside, the question involved is whether one government shall yield precedence to another, in the matter of the custody of the same defendant, for the purposes of trial. In the case at bar no such question exists. The United States is the common sovereign, whose judicial power is vested in courts created by the Constitution or laws made pursuant thereto, and for convenience judicial departments and districts, subdividing the whole territory, have been established. The accuser in each artificial division of territory, wherein there is a localized court, is the same. Its general penal statutes are usually common to the whole public domain. Its justice alone is to be administered. "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." But the sovereignty offended in criminal cases is always the United States, and the courts to whom the Constitution. and Congress have confided the inquiry belong to one of the principal departments in which the governmental power resides. But the court acts only when the sovereign accuses, and the only constitutional limitation upon the general government, as to locality of action, is that the accused shall be tried "by an impartial jury of the state and district wherein the crime shall have been committed." Article 6, Amendments. Hence the national government is one sovereign, common to all judicial districts. Whether the laws have been violated in the Eastern District of New York, or the District of Columbia, the same political body has been offended. It alone seeks vindication. Hence it is quite obvious that no question can arise similar to that where one government seeks to take a person from another jurisdiction, and each demands vindication of its own justice. But as a state may consent to make its own demand secondary to that of another state, so, the United States may yield, or may decline to yield, its rights first to vindicate its law, and surrender the accused to another power. Much the more may it select in what order it will prosecute offenses against itself. As in the case of a person seized by the state for violation of its laws, the state, and not the person, may determine whether the criminal justice of that state shall be first administered, before the surrender of the offender to another government for trial. So the federal government may determine the order of priority of trials for offenses against it, or whether there shall be any trial at all. The relative power of the executive or court to decide the order of arraignment does not seem difficult. If the executive department, acting through the Department of Justice, seeks the aid of the court to effect a removal to another district, it would be quite within the power of the court to retain the control of the defendant for the purpose of trial within its 131 F.-24

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district. But Congress has vested the initial power of prosecution in the District Attorney (section 771, U. S. Rev. St. [U. S. Comp. St. 1901, p. 601]), and has subjected him to the "general superintendence and direction" of the Attorney General (section 362, U. S. Rev. St. [U. S. Comp. St. 1901, p. 208]), who in his turn is the head of the "executive department to be known as the Department of Justice" (section 346, U. S. Rev. St. [U. S. Comp. St. 1901, p. 202]). And when, as in the present instance, the Attorney General asks that the defendant be removed to another district to meet an indictment against him there found, and the district attorney of this district co-operates for such removal, the court may, at least in the exercise of a sound judgment, permit such removal upon a proper case being made therefor. This does not mean that a defendant may be removed to another district, under conditions which would disturb the due administration of justice in the court where the defendant is held at the time, nor where the removal would work an injustice to the defendant in respect to the indictment pending in such court. In the case at bar it does not appear that the defendant will be injured by the removal, as to the indictment in this court. It is true that the Constitution gives him a right to a speedy trial, but it gives him a right to a speedy trial in the District of Columbia, as well as in the Eastern District of New York. The Constitution does not assure him the speedier trial in this district, nor enable him to select the court in which he shall first be tried. The vigor of his late struggle to prevent removal to this district does not harmonize with a desire for a speedy trial here. His absence defeated a possible trial at the May term, and another opportunity will not occur before October. The administration of justice elsewhere should not be delayed by his tardy appearance in this court.

Judge Holt held that the two proceedings in the Southern District for removal to two several and distinct districts could not concur. The learned judge did not decide that, after his removal to this district should have been perfected, he could not be removed to the District of Columbia, but pointed out that it was illogical to ask the commissioner to hold him for removal in two different directions at the same time. It may be that the learned judge would have been justified in deciding that the commissioner was simply asked to hold the defendant for removal, but that he had no power to order removal, and that the question of the district to which he should be sent should await application to the court for his actual removal. But Judge Holt's solution of the question before him was direct, convenient, and practical. Why should the same commissioner be engaged in determining the question of holding for removal to different districts, when the defendant could be removed to but one; and why should the government and the defendant be at the expense and difficulty of determining the matter of a double removal, when but a single removal was possible? Moreover, as this court had first asked for his removal to this district, it was quite within the power of the District Court for the Southern District of New York to award priority to such demand. It will, however, be noticed that the government was not asking that court to award priority to the

court in the District of Columbia; but to allow the commissioner to conduct two separate proceedings, looking to the removal of the defendant in two opposite directions. The government, at the instance of district attorneys of two distinct districts, was pursuing two antagonistic inquiries at the same time, when it was evident that one or the other of the inquiries must prove useless. It is not perceived that the question decided by Judge Holt has any bearing upon the power of this court to release its control of the defendant. It is in its discretion to retain him for trial, or to send him elsewhere for arraignment. The Executive Department asks that he be sent elsewhere. No valid reason appears for rejecting its advice. It is urged that the government elected to remove the defendant to this district, and that it should be bound by it. The proceeding for removal to this district was first taken, and that for removal to the District of Columbia followed. Judge Holt held that the second could not proceed with the first pending. Therefore he vacated the arrest in the second proceeding. Thereupon the government had the alternative of dropping the proceeding for removal to this district, and renewing the other, or of pursuing the first, bringing the defendant to this district, securing his custody and arraignment here, and thereafter removing him to the District of Columbia for arraignment on the indictment there. In this manner an orderly opportunity of bringing the defendant into the several courts, where he was accused, was secured. In any case it is considered that the government is not precluded now from instituting proceedings for removal to the other district. This court was advised by the district attorney of the proposed removal proceedings, and acquiesced in them. In view of the defendant being under bail for his continuing appearance at this court, the commissioner neither required him to give bail, nor to be imprisoned. As regards the commissioner, the defendant was free, and delivered himself up to the marshal, that he might be brought up on this writ. This may have no legal importance, but illustrates that he was not burdened. It is concluded that the commissioner has power to entertain the proceedings before him, and that this court is advised of no state of fact that requires it, in its discretion, to vacate or restrain them.

The writ should be dismissed.

In re BUTTERWICK.

(District Court, M. D. Pennsylvania. June 29, 1904.)

No. 410.

1. BANKRUPTCY ACT-PROPERTY PASSING TO TRUSTEE-RIGHTS OF EXECUTION CREDITORS-LOCAL LAW.

By Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], the trustee is vested by operation of law with the title of the bankrupt, as of the date when he was adjudged a bankrupt, to, inter alia, all property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold under judicial process against him. The trustee, by this, does not simply

stand in the shoes of the bankrupt, but is invested with the rights of his execution creditors as well; and this is to be determined by the local law. 2. SAME CONDITIONAL SALES-RECLAMATION OF GOODS FOR NONPAYMENT OF PRICE.

Where, therefore, in a case arising in Pennsylvania, goods are sold and delivered to a bankrupt at a specified price and on definite terms, a superadded agreement that the title shall remain in the seller until the price is paid is without avail as against creditors, and the goods cannot be reclaimed by the seller; the title to them vesting in the trustee.

In Bankruptcy. On certificate from M. H. Taggart, referee. Edward S. Gearhart, for Grand Rapids Show Case Co., claimants. Charles M. Clement, for trustee.

ARCHBALD, District Judge. In the possession of the bankrupt at the time of filing his petition were four show cases, now in the hands of the trustee, which were obtained from the Grand Rapids Show Case Company, and are claimed by them as their property. These goods were ordered by the bankrupt of that company October 9, 1903, after the usual business solicitation on their part, the price being fixed at $210. A few days later, and before the order was filled, the following agreement was executed by the bankrupt:

"As per our order of October 9 given the Grand Rapids Show Case Co. of Grand Rapids, Mich., for show cases I hereby agree that the title to the said furniture shall be theirs until the full amount of purchase price has been paid.

"Oct. 14, 1903.

N. H. Butterwick."

The goods were shipped November 28th upon the following invoice: "Grand Rapids, Mich., 11/28/03.

"Grand Rapids Show Case Co.

$210 00

"Sold to Mr. N. H. Butterwick, Danville, Pa. "4-6 ft. 60 Display Cases 284" wide, 1 PC. Bevel Tops.. "1 PC. Sheet Fronts, Mirror Doors, 4 Electric Reflectors. "Terms: 1⁄2 Jan. 1 1⁄4 Jan. 20 1⁄4 Feb. 10." The terms given in the invoice were so fixed as to enable the bankrupt to pay out of the holiday trade; but before a single remittance had been made, on January 2, 1904, he went into voluntary bankruptcy, leaving the Show Case Company in the lurch. The question is whether they or the trustee is entitled to the goods.

That

By section 70 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565, 566 [U. S. Comp. St. 1901, p. 3451]) the trustee is vested by operation of law with the title of the bankrupt as of the date when he was adjudged a bankrupt to all "(5) property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold, under judicial process against him." is to say, the trustee does not stand simply in the shoes of the bankrupt, but is invested with the rights of his execution creditors; and the question in the present instance therefore is whether the show cases which are sought to be reclaimed could have been successfully subjected, while in the hands of the bankrupt, to levy and sale upon execution against him. This is to be determined by the local law (Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986), with regard to which, as applied to this case, there can be no doubt. The show cases

were furnished to the bankrupt at a specified price and on definite terms of payment, and the agreement, in the face of this, that title should not pass until they were paid for, was a clumsy attempt to retain a lien for the price notwithstanding the delivery, which, as to creditors, was fraudulent and void. The decisions in Pennsylvania upon this subject are numerous, an extended review of which may be found in Ott v. Sweatmann, 166 Pa. 217, 31 Atl. 102. The liability to creditors in any given case in this state turns on the question whether the transaction is a conditional sale or a bailment, with regard to which it is consistently held that, to constitute the latter, by which the goods are exempt, they must have been delivered for a definite term and purpose, with a provision, express or implied, for their return at its end. But where, on the other hand, the transaction between the parties is essentially a sale, the superadded agreement that the ownership shall remain in the seller, notwithstanding a delivery, until the price is paid, is without avail as against creditors, and the property may be seized and sold. Stadtfelt v. Huntsman, 92 Pa. 53, 37 Am. Rep. 661; Farquhar v. McAlevy, 142 Pa. 233, 21 Atl. 811, 24 Am. St. Rep. 497. The latter beyond question is the status here. That the transaction was understood to be a sale is unmistakably shown, not only by the original negotiations, but by the invoice, which assumes the form of a memorandum bill for the goods upon definite terms and prices. No doubt, as argued, the original intention could be modified while the contract was still in an executory stage (Stiles v. Seaton, 200 Pa. 114, 49 Atl. 774); but it would have to be changed radically from what here appears to enable these parties to maintain their claim. They have nothing but the bare agreement that title should not pass until the show cases had been paid for-a condition which did not in any respect change the character of the transaction as a sale.

The case was properly disposed of by the referee, and his action is affirmed.

THE SACRAMENTO.

(District Court, E. D. Wisconsin. July 5, 1904.)

1. ADMIRALTY-COLLISION-LIMITED LIABILITY PETITION-FAULT-CONTEST. Where a petition in admiralty to limit the liability of a vessel and cargo for collision, as authorized by Admiralty Rules 54-57, failed to state the facts and circumstances by reason of which exemption from liability was claimed, as required by rule 56, the petition was insufficient to entitle petitioner to contest the question of fault on the part of its vessel. 2. SAME GENERAL MARITIME LAW.

Except as adopted by statute, the general maritime law is not the law of the United States.

On exception to the petition by Ohio Transportation Company, as owner of steamer Gladstone and bailee for cargo, and by the underwriters, as well, on such cargo, in respect of petitioner's allegations for leave to contest liability.

11. Limitation of shipowner's liability, see note to The Longfellow, 45 C. C. A. 387.